On temporary incumbency

134. Exercise of presidential powers during temporary incumbency.

(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President...(a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office...may not exercise the powers of the President specified in clause (2).

140. Questions as to validity of presidential election.

(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.

This is where my laissez-faire attitude towards grammar and comprehension that comes to bite me in my backside. The 1st September invalidation of the 8th August presidential election have given rise to the a simple question with profound implications: is Uhuru Kenyatta bound by the provisions of Article 134 on the exercise of presidential powers during temporary incumbency?

It all depends on how you interpret the judgment of the Supreme Court on the 1st September. The Supreme Court was called to determine whether or not the presidential election was valid. It found that the election of the president-elect was invalid. The key expression in Article 140 (3) for our purpose is "president-elect". Taken together with the words in Article 134 (1) (a), "during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office", Uhuru Kenyatta is bound by the provisions of Article 134 because, notwithstanding that his election was invalidated, the period described in 134 (1) (a) is not yet spent.

The date of the first vote in a presidential election was the 8th August. A newly elected president has not yet assumed office. What the Supreme Court ordered, in the language of Article 140 (3), is not a presidential election but a fresh election for the office of the president. Until Uhuru Kenyatta is successfully elected on the 26th October, and a petition under Article 140 is defeated, he remains a temporary incumbent in the office of the president and is bound by the provisions of Article 134.

To the wilderness or not?

On elections, this is the hierarchy of laws: the Constitution, the Elections Act, 2011, the Election (General) Regulations, 2012, IEBC guidelines and the like. Some of you already know that one other source of law is known as common law, the body of decisions by the highest court on relevant matters. What many of you might not understand or appreciate, is that common law is only applicable when the Constitution, Acts of Parliament and subsidiary legislation (including guidelines, etc.) have failed to address a matter that is in controversy. Common law is the interpretation of the law as well as the circumstances necessitating that interpretation that seeks to resolve a matter for which the written law is silent, ambiguous or contradictory. Common law, just like all other sources of law, is not infallible and is to be relied on only as a last resort.

We have the benefit of two Supreme Court judgments filed by the same petitioner against the same respondents in two separate presidential elections. Both judgments form part of the common law on presidential elections in Kenya. Both judgments lay down what can and can't be done in relation to specific provisions of the Constitution and the electoral law of Kenya. Both judgments are flawed and have done little to resolve the political or administrative problems that necessitated the presidential election petitions in the first place. If for nothing else, we must thank the Supreme Court for familiarising us with Articles 138 and 140 of the Constitution, section 13 of the Elections Act, 2011 and regulation 52 of the Elections (General) Regulations, 2012.

Article 138, over which much has been said, relates to the procedure at a presidential election. It guided the presidential election on the 8th August. From the moment the presidential candidates filed their nomination papers with the IEBC to the the 11th August when the Chairperson of the Commission declared Uhuru Kenyatta duly elected as the President of Kenya, Article 138 held sway. Article 140, on the other hand, was invoked by Raila Odinga in his petition challenging the declaration of Uhuru Kenyatta as President of Kenya and the Supreme Court invoked its powers under clause (3) to invalidate the election and order a fresh election within 60 days. The judgment of the Supreme Court now forms part of the common law of Kenya on presidential election petitions and presidential elections. And it is a mess.

The 2013 judgment, at paragraph 290, obiter dictum or not, refers to the abandonment of a presidential campaign by a candidate under Article 138(8)(b). This is what it says,

[290] Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (8) (b) would become applicable, with fresh nominations ensuing.

The problem is not what the Supreme Court said but what Article 138 (8) (b) actually provides for. It states,

(8) A presidential election shall be cancelled and a new election held if—
...
(b) a candidate for election as President or Deputy President dies on or before the scheduled election date...

There are two important things to note about Article 138 (8). The first is that it deals with the cancellation of an election, not its invalidation. The second is that clause (8) (b) deals with cancellation on account of the death of a candidate, not  his abandonment of the electoral quest. A cancellation of the presidential election is a power than can only be exercised by the IEBC, not the Supreme Court whose power is exercised only under Article 140 (3) when it declares a presidential election as invalid. The 2013 judgment is badly written and it makes for bad common law. Its paragraph 290 must be revised. The Supreme Court must also set out what it means for a presidential candidate to abandon the electoral quest after a presidential election has been invalidated under Article 140 (3) and whether it would serve as sufficient ground for the Commission to cancel the election and set a new date under Article 130 (9), which has the same 60-day time-frame as under Article 140 (3).

You will notice that I have not examined the Elections Act, 2011 or the Elections (General) Regulations, 2012. This is because they cannot provide for what was not provided for in the Constitution, namely the effect of the withdrawal of a presidential candidate from a fresh election that was necessitated by the invalidation of a presidential election. Regulation 52 of the regulations that has been much-quoted on social media is not applicable in any way; it only provides for withdrawal of a candidate within three days of filing his or her nomination papers with the Commission. Because of the 2013 judgment at paragraph 294, there is no need for fresh nominations in the case of a fresh election which has been necessitated by the invalidation of a presidential election under Article 140 (3).

In theory, the hierarchy of laws and the place of common law in that hierarchy is supposed, as far as possible, to address niggly issues like those raised by the invalidation of a presidential election and the withdrawal of a candidate from the fresh election, as has been threatened by Raila Odinga. In our case, we are nowhere near finding a solution that is both practical and respects the provisions of the Constitution. Our constitutional, statutory and jurisprudential architecture is deeply flawed. In the extant case, the only logical solution is political: both parties, Messrs Kenyatta and Odinga, must negotiate a settlement that permits both to participate in the fresh election and sets down a road map for the amendment and clarification of the constitutional, statutory and regulatory provisions of the electoral law of Kenya. If they fail or refuse to defuse this time bomb, they will both be responsible for setting Kenya down a constitutional wilderness for which solutions may never be found.

Handy scapegoats

Is there a profession more reviled than that to which I have devoted my adult life? Not really, going by all the Nazi Germany allusions that are increasingly being made in these days of perpetual anti-IEBC demonstrations. Some of the people responsible for fanning animus against the Kenyan Bar are members of professions that have not covered themselves in glory, most notably the members of Kenya's Fourth Estate. You get the impression that members of the Law Society, whether or not they are of good standing, have colluded to foment as much civil, political and constitutional unrest with the unholy and ulterior motive of converting the Republic into a nation run by, for and of lawyers, jurists and similar odious specimens. It is a comfort to know who your enemy is, to put a face to it, and to wage against it. But what if the enemy you're afraid to confront is yourself? How do you fight yourself?

The Supreme Court is wrong

[290] Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (1) (b) would become applicable, with fresh nominations ensuing. -- The Supreme Court of Kenya, Presidential Petition (2013)

If you are a keen reader of the Constitution, then you are aware that Article 138 does not have a clause (1) (b). The error by the Supreme Court is important because it affects the outcome of the upcoming fresh presidential election, scheduled for the 26th October if Raila Odinga makes good on his threat to "not participate in the fresh election".

It seems that the Supreme Court made up its own provision in Article 138 and then proceeded to hang the "fresh nominations" hat on its interpretation of what the fictitious provision meant. Article 138 deals with the procedure at a presidential election: from qualification to the declaration of results. It doesn't deal with invalidation, the subject of Article 140 (3); instead, it describes the circumstances surrounding a cancelled election at clause (8). Suffice to say, cancellation and invalidation are not the same nor do they operate in the same constitutional process.

Fresh nominations are contemplated in the context of a cancelled presidential election under 138 (8). They are not contemplated in Article 140 (3) where a presidential election has been invalidated by the Supreme Court. The Elections Act, 2011, at section 13, is of no help; it doesn't contemplate the effect of a resignation by a duly nominated presidential candidate after submission of nomination papers to the electoral commission.

As it is, the Supreme Court declares that the parties to the petition that invalidates a presidential election, where the petitioner was a candidate in the invalidated election, shall be the ones to stand in the fresh presidential election. Where the successful petitioner was not a candidate, then all candidates who were on the ballot in the invalidated election shall stand in the fresh elections. Their status immediately after the invalidation of the election is, going by the Supreme Court, that of nominees whose nomination papers have been accepted by the Commission.

A wrinkle now appears. Neither the Constitution nor the Elections Act provide for the withdrawal of a nominated candidate from the presidential election, fresh or otherwise. Even if Mr Odinga's refusal to participate, whatever that is, is taken to mean that he has withdrawn from or abandoned the presidential election, neither the Constitution nor the Elections Act recognises that act. It seems that whether he participates or not, an election must be held within the 60 days' constitutional threshold and Mr Odinga's name will be on the ballot, whether he participates in the election or not.

The Supreme Court corrected the error found in paragraph 290 of its 2013 Judgment; paragraph 290 was an interpretation of Article 138 (8) (b), which states,

(8) A presidential election shall be cancelled and a new election held if...a candidate for election as President or Deputy President dies on or before the scheduled election date...

Article 138 (8) deals with a cancelled election, not an invalidated one; and even if one were to allow that it 138 (8) could deal with an invalidated election, the only circumstance contemplated in clause (8) (b) is the death of a candidate, not the abandonment of the election by that candidate. The Supreme Court's interpretation of Article 138 (8) (b) is wrong.

I need a nap

What our country needs is a benevolent dictator with a clear mission of making Kenya great. He should appoint judges, order hanging of the corrupt and oversee a clean-up of our systems. -- Ndindi Nyoro (Kiharu, Jubilee Party of Kenya)

A key phrase in the oath or affirmation of a member of parliament, to which Mr Nyoro would have subscribed when he was elected as a member of the National Assembly, states,

...that I will obey, respect, uphold, preserve, protect and defend this Constitution of the Republic of Kenya...

The Constitution, which he has sworn or undertaken to obey, respect, uphold, preserve, protect and defend, states in the preamble that the people of Kenya recognise "the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice ad the rule of law", which may be incongruous with Mr Nyoro's vision of a benevolent dictator who will "order the hanging of the corrupt".

The Constitution also states that "any attempt to establish a government otherwise than in compliance with this Constitution is unlawful, which may not jive too well with Mr Nyoro's fantasies of benevolence from a dictator who "must be given a free hand to make things right on our behalf", completely ignoring the provisions of Article 10 on the values and principles of national governance, of which the rule of law, democracy and participation of the people are very hard to miss.

Mr Nyoro is an apt example of the shocking discovery that very smart people can be incredibly stupid, their stupidity having nothing to do with their successes in academia or business or politics, or all three as is the case with Mr Nyoro. Stupid people are capable of great academic, professional and political success, as has been shown by Boris Johnson, the UK foreign affairs minister and Dr Ben Carson, the US secretary of housing and urban development. These two have taken stupidity to heights never seen before. Mr Nyoro is about to surpass them.

As with those who have recently discovered the virtues of being ruled by a dictator, their motivation for this craving for an iron rod and an iron fist stem from the desire for great material wealth and overt signs of "development" -- superhighways, megadams, speedy railways -- the so-called "real deliverables" against which all benevolent dictators measure themselves. Democratic markers such as social justice, human rights, freedom of choice and freedom of speech are "expensive and clearly not working" as is plain to see. Many parliamentarians from the Jubilation have discovered that they want and need to be ruled by an iron-fisted iron-rod-wielding dictator who will check his worst impulses and instincts through the application of benevolence in pursuit of the national goal of "development".

These parliamentarians have forgotten the core of the message in the oath they swore when they were elected to Parliament. They have betrayed their oaths to obey, respect, uphold, preserve, protect and defend the Constitution. And all because they don't like the way the Opposition has used the Bill of Rights to advance its agenda. In the Jubilation's horrified gaze, "opposition leaders can misuse freedoms and make pronouncements that are likely to cause ruin and chaos is proof that we are disorderly." They fervently would like to get rid of the Opposition leaders. But that would cause even greater chaos and ruin. So, they want their beloved benevolent dictator as a counter-power center. Sometimes this level of stupidity is so overwhelming to contemplate that I need a nap afterwards. I need a nap.

It's the corruption, Sir.

We have no choice than to think, work and produce like other global citizens. We need more of Safaricom and The Java Coffee Houses. Companies that understand that they are playing at the global stage and benchmark with the best. The one man-heroics will be history. What a price to pay for state nurtured mediocrity! -- Jua kali, the weed killing Kenyan formal economy

In Kamukunji, in that zone bordered by Landhies Road, Kamukunji Road, NACICO Plaza, Kamukuni Secondary School, the Nairobi River and Lamu Road, you will find jua kali manufacturers of metal boxes beloved of all Form One students on their way to boarding school, chicken feeders, roof gutters, wheelbarrows, two-wheel trolleys, window frames, doors, shovels, chips fryers, nyama choma grills and dozens of other manufactures. The cacophony in this zone is sometimes overwhelming, the dust incessant. In this zone are employed hundreds, directly and indirectly, as manufacturers, salesmen, food and beverage vendors, transporters and medical practitioners. This zone has remained virtually unchanged for nigh on forty years.

Business and Government have a symbiotic relationship; neither can exist effectively without the other. In both are constituencies of special interest groups, determined to maximise returns, sometimes at the cost of the overall system. In Government are to be found men and women willing to relax the rules for an unlawful fee. This is known as rent-seeking. In business are to be found men and women willing to pay this fee in order to skirt around rule and regulations so that they can maximise returns on investment. It is simply not true that the jua kali sector is single-handedly responsible for keeping Kenya back; the active participation of public officers cannot be gainsaid. If Government had not relaxed the public transport rules that applied against the Kenya Bus Service, matatu culture may not have gripped every segment of the economy like it has today.

The secret sauce to the disfunction is, of course, political corruption. The Kenyan administrative state did what all administrative states usually do: it thrived by expanding the areas of commercial activity that required licenses and permits by publishing ever more rules and regulations, both at national and municipal level. With this growth in regulation there was a corresponding growth in the power of bureaucrats -- the erstwhile administrative officers of the administrative state. And this power was exercised in many ways, the worst being the power to "look away" for a fee whenever a businessman wanted to skirt around the rules and regulations. When the Kenyatta government asked the city council of Nairobi to "allow" matatus to operate in the city, this was an example of the administrative state allowing the relaxation of established standards for political benefit. When the Ndegwa Commission recommended that civil servants could engage in business or own property, this was the beginning of the end of the administrative state and its takeover by the political classes. From then on, politicians in need of campaign war chests used and abused their administrative powers, further entrenching matatu culture in commercial activity.

By all accounts, Kamukunji's jua kali manufacturers could have grown into formidable large-scale manufacturers if the rule and regulations in the sector were applied fairly and consistently. It is a truism in life that the longer you do something, the better you get at it, and the higher the quality of your product. Some of the industrial designs by manufacturers in Kamukunji have taken years to perfect, whether it is in manufacturing systems of final products. But because of the collapse in the values and principles of national governance that have led to the disfunction in the fair application of rule and regulations, even if a jua kali manufacturer managed to register his or her designs with the Kenya Industrial Property Institute or obtain trademark recognition, he or she is not guaranteed protection either by the administrative or political officials in Government, or a fair hearing and a just outcome in courts of law. And without protected intellectual property to his or her name, he or she is unable to access credit or finance from commercial lenders and thus business growth will eventually hit a plateau from which it will not surpass, especially when his or her industrial designs are copied and applied by other jua kali manufacturers. This cycle has become a permanent feature of the jua kali business environment.

Two examples of the unfair environment in the business sector will suffice. In 2008, Safaricom was sued in relation to an upgrade to its MPesa platform. If Safaricom had not been the colossal financial behemoth it was even then, the challenge may very well have succeeded. But the intellectual property at the heart of the suit was not registered and was most likely unprotected. Another example is the protection from competition sought by a powerful middle east company that holds the rights to Carrefour in Kenya. Majid Al Futtaim Retail has the cash to fight this battle while most of the small-scale retailers it has in its sights will give up if they want to stave off insolvency. Now while the man accusing Safaricom of stealing his intellectual property and the Two Rivers Mall's small-scale businesses may not be jua kali, they share the same challenges that jua kali manufacturers face: when bigger and more "valuable" companies attack, they don't have the capacity to fight back or protect their commercial interests. This is not because of their jua kali nature but because of the matatu culture that privileges some business interests over others.

Kenyans don't suffer mediocre manufactures or services because of the inherent mediocrity of the jua kali sector. Kenyans suffer mediocre products because the business environment, jua kali and otherwise, is regulated with the private interests of the regulators in mind more than the overall health of the sector in general. If the regulators protected the interests of all businessmen equally, without picking favourites, they would have greater incentive to formalise many of their activities, if not all, and this would raise the standards of their goods and services. The obvious first step is to crack down on the officials in regulatory agencies, both administrators and political appointees, who are in it for the rents their power affords them. Until that happens, not even formal business colossi like Nakumatt will survive.

What is the minister playing at?

“Why should you carry around a whole platoon of police officers to go and commit a crime; to evict constitutional office holders?” the minister said in reference to threats by Nasa to lead supporters in storming offices of the electoral commission and force out staff they claim bungled the presidential election. Daily Nation (29/9/2017)

The members of the Independent Electoral and Boundaries Commission, are, indeed, "constitutional office holders" as the minister puts it. However, the secretary and chief executive officers and the remaining staff of the commission are not. All have the right -- indeed, the opportunity -- to ignore the Nasa brigade and its unreasonable demands. For instance, the chief executive, Mr Chiloba, has studiously ignored the Nasa demand that he must resign for being responsible for the irregularities and illegalities committed during the August 8th election as the Supreme Court found. Mr Chiloba did not need the minister to fight his battles for him. Neither do Mr Chiloba's underlings.

The minister, it seems, has used the Nasa anti-IEBC protests as the pretext for withdrawing the bulk of the police bodyguards afforded to Nasa leaders -- a former Vice-President and a former Prime Minister. Of course it will be seen as a partisan affair -- the minister playing hatchet-man to the sore-losers in the Jubilation who simply can't understand how a serial electoral loser could prevail against them at the Supreme Court. Their Supreme Court. Mr Odinga, his unholy cabal and the Supreme Court have to be taught a lesson and the most important is how vulnerable they all are without the warm blanket provided by the personal security of the tough-as-nails General Service Unit commandos. The Supreme Court, its judges (well, most of them, anyway) and its members of staff, faced this intimidation on the days before they delivered their opinions. It is the Nasa leadership's turn to face the music.

The minister is the singular expression of the petulance exhibited by the psychologically unhinged among the Jubilation. He brings their childish revenge fantasies to life. That he is blind to how he looks when he carries out the bidding of the Jubilation's lunatic fringe is not surprising; their masters' voices very rarely get to step back and consider whether or not unswerving loyalty is boon or bane to their individual reputations or character. They enjoy exercising untramelled power without thinking of the consequences. They are like those children who get a test for torturing household pets and have never been caught or punished for their cruelty. In many respects, they are psychopaths who excuse their cruelty with that old dodge: "I was just following orders."

Obviously no one really wants or expects the Nasa leadership to suffer any security scares. But these are not normal times. All it takes is one mistake that endangers their lies, one lunatic hearing voices in his head about how the gods want him to restore athamaki. All it takes is one accidental shooting. All it takes is for the insane fantasies of the Jubilation -- of a world in which That Man is gone -- to come true in violent fashion for their world to disintegrate, armed police or not. It is scary that one coalition can house so many imbeciles that it begs the question: what is the minister playing at?

Of bullies and intellectual charlatans

Ten years ago he hounded Samuel Kivuitu out of office. Last year he hounded Isaack Hassan out of office. Today this same man is working hard to ensure Ezra Chiloba leaves office. The only crime all these men committed is to be at the helm of an electoral commission that did not announce him President of Kenya. -- Raila a bully who insults, wounds -- Ngunjiri Wambugu

Ten years ago, in December, the Electoral Commission of Kenya oversaw a general election that ended in some of the greatest violence related to an election since Independence. A commission of inquiry headed by a respected South African jurist concluded that while it would never be proven who had actually won the presidential election, the electoral commission was to blame for the manner in which the election was managed. It will remain highly contested territory whether or not "mass action" calls by the Opposition led to the violence, but the spark that lit the tinder was laid by the Commission and its chairman, the late Samuel Kivuitu.

One of the recommendations of the Kriegler Commission that investigated the management of the 2007 general election was that the Kivuitu commission had to go home. Raila Odinga was not the only one who indicted the Kivuitu commission; Johann Kriegler and the members of his commission of inquiry did so too, as did the vast majority of Kenyans who had suffered the consequences of the decisions of the election commission and its chairman.

As for Mr Hassan and his commission, the widespread failure of the electronic voter identification kits during the 2013 general election could not go unchallenged especially as it formed a major plank of Mr Odinga's rejection of Uhuru Kenyatta's election. The Supreme Court disagreed with Mr Odinga -- mostly because it refused to entertain the proof he alleged to have compiled in a 900-page affidavit. Mr Odinga accepted the verdict of the Supreme Court but vowed to lead the charge in reforming the commission and the law relating to elections. Mr Odinga succeeded. The commission was reconstituted and the law amended. This was done with the active collaboration of the ruling coalition, though some of its members attempted to sabotage the reforms in January 2017.

Mr Odinga's current animus against Mr Chiloba is not founded on the well-worn canard that Mr Chiloba's chairman, Wafula Chebukati, "refused" to announce Mr Odinga as the President of Kenya. Mr Odinga alleged that the 2017 general election, especially in the presidential election, was conducted in the midst of irregularities and illegalities that rendered the outcome of the election as lacking in credibility, integrity, transparency or accountability. The Supreme Court, this time around, agreed with Mr Odinga and invalidated the presidential election. (Of the over 340 election petitions filed so far, the Supreme Court decision is set to become a well from which the waters of justice may never be exhausted.)

Mr Odinga, for better or for worse, has become the face of constitutional and political reforms in Kenya. Ever since his spectacular falling out with Mwai Kibaki in 2003, after Mr Odinga had led the charge in ensuring Mr Kibaki's electoral victory, Mr Odinga has been at the forefront of holding the national government, its officials and agents accountable for their acts of omission and commission. He has made many mistakes in his actions but he has inexorably moved the nation towards greater openness and transparency regarding Government's operations. Some of his actions have required a certain measure of public pressure -- of public officials and institutions -- and this was to be expected. Entrenched retrogressive elements will not budge simply because we say "pretty please". They must be shown shows of force. Great pressure must be brought to bear on them in order for them to see the virtues of change. This has been the story of all political and constitutional change in Kenya since the days of Saba Saba, something Mr Wambugu, in a fit of intellectual dishonesty, refuses to acknowledge.

A distinction, though, must be made about Mr Odinga's tactics and bullying. Mr Odinga is undoubtedly as selfish as we all are. He seeks ultimate political power like the thousands of politicians in Kenya. But despite this basic truth, it is also true that Mr Odinga has been responsible for shining a light on some very discomfitting aspects of the way Government operates, including how elections are managed. Kenyans are the better for it too. Perhaps Mr Odinga enjoys emotional satisfaction in removing senior public officers from office but when they have been responsible, by acts of omission or commission, in the deaths of thousands, the destruction of billions of shillings worth of private and public property, or the loss of billions of taxpayer funds, this is undoubtedly a good thing for the peoples of Kenya. Peace and stability cannot be used to cover up the misdeeds of public officers. That is not the constitutional bargain we made for ourselves with constitutional provisions such as those found in Article 10 or Chapter Six. If it takes a "bully" to reveal public officials as being devoid of integrity and unworthy to hold public office, then so be it.